|Will David Boies, lawyer for the NBPA, call the NBA's lawyers to get the ball rolling? (Getty Images)|
NEW YORK -- The NBA season is now in the hands of lawyers who can't even figure out how to start a game of phone tag.
That's where we are.
In a media briefing Monday to announce that the players have consolidated and refiled two separate antitrust claims into one class action in Minnesota, attorney David Boies lamented the slow response and virtual silence from the NBA since the actions were first filed last Tuesday. In fact, he scoffed at the league's response -- delivered to reporters via email from NBA counsel Rick Buchanan, and not commissioner David Stern -- as evidence for why making a phone call to begin settlement talks would be "a waste of time."
"I think they've made pretty clear, including by the statement that they just made, that they've got no interest in talking to us," Boies said at his Manhattan office. "It takes two people to negotiate."
But it only takes one person to pick up the phone and dial a number to get the ball rolling. And Boies said neither side had done that as of Tuesday, at least not at the highest levels of the law firms involved -- the law firms that now hold the future of a sport in their hands.
Legal protocol says that Stern can't really call former union director Billy Hunter, and the attorneys for either side can't call one of the clients on the other. It's a tangled web they've woven, one that has made tracks in four district courtrooms in three states since the NBA first sued the players in August.
As to whether the players' attorneys should call the NBA's attorneys, or vice versa, there is protocol for that, too. The players have sued the NBA, and thus it is incumbent upon the NBA to respond. The league has until Dec. 5 to formally respond to the lawsuit in the U.S. District Co in Minnesota. Or, its legal representatives can at any time pick up the phone and call Boies or any of his associates working on behalf of the players to initiate settlement talks. This would not only bring the league closer to stopping the clock on potential damages, but also would start the clock on possibly having a basketball season.
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It's not my job to tell which lawyer to call which lawyer. But just for illustration purposes, I'd like to explain how easy this is. The attorney representing the NBA in the lawsuit it filed in New York against the players in August is Jeffrey Mishkin, who has long represented the league in various legal entanglements. I placed a call to Mishkin's office Monday to see if any such settlement talks had begun between the league and the players.
And guess what? Mishkin took the call, and spoke with me -- though he couldn't and didn't say much. And if he spoke with me, something tells me he wouldn't mind finding the time to speak with Boies.
In fact, such a conversation on other topics almost certainly has taken place, since Mishkin's firm (take a deep breath, it's Skadden, Arps, Slate, Meagher & Flom) -- happens to be co-counsel with Boies' firm (Boies, Schiller & Flexner) in another pretty important lawsuit filed Monday. The two represent former shareholders of AIG who are suing the United States Treasury and New York Federal Reserve Bank, seeking as much as $25 billion in damages over the government's takeover of the troubled insurer in 2008.
So back to my question, which I'll pose as a riddle: How many lawyers does it take to make a phone call?
Finally, after some back-and-forth with reporters, Boies admitted that while he believes trying to engage the NBA in settlement talks would not be a billable hour well spent, picking up the phone is something he might just try.
"I suppose it couldn't hurt for me to call him," Boies said. "Ask me that Wednesday."
So here we have a 48-hour window during which the NBA's top lawyer and the players' top lawyer are expected to at least converse. This passes for progress in this clown parade of idiocy that has jeopardized the entire NBA season for reasons that are beyond baffling.
As for the lawyers, I'll say this: If nothing comes of that phone call between now and Wednesday, then they are not very good at their jobs. And if they're still digesting their turkey and stuffing on Friday without some semblance of an agreement at least in the formative stages, they should all just go away and leave us alone.
Of course, it may just be a case of semantics, like the entire legal case each side has brought against the other.
If a staff-level conversation or perhaps a well-intentioned attempt at intervention from an interested third party hasn't happened in the six days since the players took their first swipes at antitrust retribution last Tuesday, it's a travesty. There are attorneys on both sides of this who have known each other for decades, and attorneys on opposite sides of this case that have opposed each other before and worked together on cases before.
And we're not talking about rotary phones or certified letters being the only means of communication. There are 50 ways to lose a lover, 500 ways to let someone know you want to talk, and an infinite number of ways to be stubborn and avoid them, if that's the action you choose.
But if that's the action either side chooses here, they need to understand that their professional advice to you is to rot until they're finished pleading, motioning, and oral-arguing each other to death. You can rot until they're finished spending money that could be getting pooled together in a settlement that could be handwritten on a napkin before another drop of ink or minute of a law clerk's time is wasted on these lawsuits that will never get anywhere near a conclusion.
"Litigation is not the best way to resolve most disputes," Boies said. "Most disputes ought to be settled."
So, somebody pick up the phone and settle it.
Boies' partner, Jonathan Schiller, said it's reasonable that a summary judgment for damages could be achieved in the new, consolidated Minnesota case in 60-90 days. By that time, taps will have long since played on the NBA season, and the league will be sitting shiva for a long time -- with less revenue to share than it ever imagined.
With a potential $25 billion case against the federal government being litigated in the very building where Boies briefed reporters Monday -- not to mention a pending case in the U.S. Supreme Court for NBA attorney Paul Clement, who will argue that President Obama's health care law is unconstitutional -- there is no shortage of bigger fish to fry. I'm sure all attorneys tell their clients they're spending every waking hour on their case, but if I were Boies or Schiller, frankly, I'd be bored with this one already.
Unravel one of the most flagrant financial unwindings in U.S. history, or bicker with basketball attorneys about whether the mid-level exception for taxpayers should start at $3 million or $5 million? The only positive outcome for the latter if you're a world-class litigator is perhaps a lawsuit against the makers of Red Bull if it fails to keep you awake long enough to find out the answer.
Trust me, it won't. I've tried.
I've also tried picking up the phone and calling someone. And incredibly enough, that works.